Wendy Kennett

Forum Non Conveniens in Europe

Various authors have drawn attention to the fact that a new European law of civil procedure is in the process of being created. The kernel of this new law is the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Further areas of law are in part harmonised by the 1965 Hague Service Convention and the 1970 Hague Evidence Convention. While a certain set of “core” European rules has been established, there remains a penumbra: an area within which it is unclear how far traditional national rules may retain a role.

Current developments in private international law: Family law; civil and commercial matters; the Hague Conventions in the internet age

On 27 July 1999 a UK Act was passed to “make provision for giving effect to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption concluded at the Hague on 29 May 1993” and “to make further provision in relation to adoptions with an international element”.1 At the time of writing, however, the UK had not ratified the Convention. By section. 18(3) the Act will be brought into force on a date appointed by statutory instrument.

I. The Treaty of Amsterdam

The Treaty of Amsterdam, expected to come into force this year, opened up new horizons in relation to European civil procedure. Article 65 of the revised EC Treaty will bring various aspects of civil procedure within the scope of Community law, in so far as they are “necessary for the proper functioning of the internal market”.

Removal of Exequatur in England and Wales

The law relating to the enforcement of judgments in England and Wales is complex: a complexity deriving from the lack of any overall supervision of the procedure. Enforcement tasks are divided between solicitors, judges and other court officers, and independent enforcement agents, and are moreover allocated to two different court systems: the High Court and the County Court. For the creditor who is not experienced in English enforcement law, it may be difficult to know where to get good advice. In addition, information about debtors’ assets is not easy to obtain. In the light of these considerations, the amendments to English law that have been introduced to implement the Brussels I Regulation (recast) – removing the previously centralised procedure for registration of foreign judgments and directing creditors to choose among these diffuse enforcement procedures – do not seem to be an unalloyed improvement in the system of cross-border enforcement.

Arbitration of intra‐corporate disputes

Purpose – The purpose of this paper is to explore the possible use of arbitration in disputes involving claims against directors. It takes as its starting point a recent decision of the English Court of Appeal, Fulham Football Club [1987] Ltd v. Richards, in which the Court confirmed the enforceability of an arbitration agreement in proceedings where one of the defendants was the company chairman, and asks how far this case is representative of a general trend.Design/methodology/approach – The methodology adopted is comparative, with particular but not exclusive reference to laws in the USA, the UK, France and Germany. The paper examines case law and literature in three intersecting areas. First, it notes the existence of distinctive approaches to corporate governance which broadly correspond to those of common law and civil law (outsider and insider) jurisdictions. Second, it reviews the relative significance in different jurisdictions of public and private law mechanisms for enforcing compliance with th...

Current developments: private international law. I. Jurisdiction

The well established rule that an overseas company that establishes a place of business in Great Britain and does not provide an address for service can be served with process at that place of business1 was thrown into confusion by the insertion into the 1985 Companies Act of several new provisions including a new section 694A(2) which provides that process may only be served on a branch “in respect of the carrying on of the business of the branch”.2 The new rules did not purport to change the situation in relation to a place of business falling short of a branch, and thus created the anomaly that it was apparently easier to serve a place of business than a branch. The proper interpretation of these rules arose in Saab v. Saudi American Bank (Court of Appeal, 2 July 1999).3 Before the case was heard by the Court of Appeal, the new Civil Procedure Rules entered into force on 26 April 1999. Under Part 62(2): A company may be served by any method permitted under this Part as an alternative to the methods of service set out in— (a) section 725 of the Companies Act 1985 (service by leaving a document at or posting it to an authorised place); (b) section 695 of that Act (service on overseas companies); and (c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain). Under Part 6.5(6) where a party has not given an address for service, a document may be served on a company not registered in England and Wales at “any place of business of the company within the jurisdiction.”

Current developments in private international law: II. The Brussels II Convention

The other development under the justice and home affairs pillar of the Union relevant to European civil procedure is the so-called Brussels II Convention: the Convention on Jurisdiction and Enforcement of Judgments in Matrimonial Matters signed on 28 May 1998. This Convention continues the work of the 1968 Brussels Convention by extending similar principles to the field of matrimonial matters. The earlier Convention is seen as the general convention and the 1998 Convention as a lex specialis which follows the principles of the earlier Convention as far as possible.

VI. A Footnote on the Treaty of Amsterdam

The Treaty of Amsterdam entered into force on 1 May 1999. In the exercise of its new competences under Title IV of the EC Treaty as amended, the Commission has transformed the Convention on Service of Documents into a draft Directive, and the Brussels II Convention into a draft Regulation, both of which are currently going through the Community legislative procedure. The renegotiated text of Brussels I has also been transformed into a draft Regulation, but the possibility of further amendment is mooted.

IV. Recognition of Judgments and Authentic Instruments under the Brussels Convention

That question remains open following Case C–99/96 Mietz v. Intership Yachting Sneek BV 16 a more recent decision that raises some similar issues but continues to confine its attention to interim payments. The applicant was appealing against a German order for enforcement of a Dutch judgment ordering interim payment in kort geding proceedings. The applicant argued that the underlying contract was covered by the special provisions on consumer contracts in Articles 13 et seq. of the Brussels Convention. Therefore failure to observe the rules of jurisdiction in Articles 13 et seq. was a ground for non-recognition of the Dutch judgment. The contract was for the sale of a luxury yacht, to be paid for in five instalments during its period of construction and trial. A written contract was signed in the Netherlands, but the applicant alleged for the first time in the German proceedings that the contract was negotiated at a boat show in Germany and an oral contract was made there.